PEOPLE v. CABALLEROAppellant's Reply Brief on the MeritsCal.September 30, 2011S 190647 IN THE SUPREME COURTOF THE STATE OF CALIFORNIA The People of the State of California, Plaintiffand Respondent v. Rodrigo Caballero, - Defendant and Appellant SEP 3.0 201 Case No. B 217709 rrederick «, Ohirich Clark Daputy In re Rodrigo Caballero, on Habeas Corpus Case No. B 221833 Court of Appeal, Second Appellate District, Division 4 Appeal from Superior Court, Los Angeles County, Hon. Hayden Zacky, Judge (LASC Case No. MA043902) PETITIONER’S REPLY BRIEF ON THE MERITS David E. Durchfort SBN 110543 Kosnett & Durchfort 11355 W. Olympic Blvd. Suite 300 Los Angeles, CA 90064 310 444-8898 310 444-8878 (fax) David.durchfort@verizon.net Attorneys for Defendant and Appellant S 190647 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA The People of the State of California, Plaintiffand Respondent v. Rodrigo Caballero, Defendant and Appellant Case No. B 217709 In re Rodrigo Caballero, on Habeas Corpus Case No. B 221833 Court of Appeal, Second Appellate District, Division 4 Appeal from Superior Court, Los Angeles County, Hon. Hayden Zacky, Judge (LASC Case No. MA043902) PETITIONER’S REPLY BRIEF ON THE MERITS Table of Contents Table of Authorities 0.0.0... ccccccccccccccccccccccsceccecceseeceesecsesevecscecsececceaeauananens ul Argument I. ANY PRISON TERM THAT EXCEEDS A JUVENILE NON-HOMICIDE OFFENDER’S LIFE EXPECTANCY TS UNCONSTITUTIONAL.... occ ee ce ecccccceeetsconsenuenseeseneeneseeensaseseesssseseeenens 1 A. NO-PAROLE PRISON TERMSFOR JUVENILES CONVICTED OF SERIOUS NON-HOMICIDE OFFENSES—_INCLUDING ATTEMPTED MURDER—HAVE BEEN REJECTED NATIONWIDE...... 2 B. LIFE IMPRISONMENT FOR JUVENILE HOMICIDE OFFENDERS CONFORMSTO GRAHAM.......cecccseeeceeteeereens 5 Il. SENTENCING SEMANTICS ARE NOT DISPOSITIVE: A CONSECUTIVE SENTENCE THAT DENIES PETITIONER PAROLE VIOLATES THE EIGHTH AMENDMENT...........cccsseccecsseceeseeeeeseeensesneesees 7 A. UNDER RESPONDENT’S THEORY, MINORS WHO HAVENOTFIRED GUNSOR INFLICTED INJURY COULD SUFFER A LIFETIME OF INCARCERATION........cccceseseeeeseeees 8 B. PETITIONER INJURED ONE PERSON DURING A SINGLE INCIDENT.........cccceccccccesceeecensececesseesenseeeneeeeesessaneoseeseeenss 10 C. PETITIONER IS NOT THE SERIAL OFFENDER THAT RESPONDENT AND THE COURT IMAGINED...........ecccccceeseeeseeeeeeees 11 Il. ATTEMPTED MURDERIS NOT HOMICIDE.............csssseecesseeeeseeeees 15 A. GRAHAM’S USE OF THE TERM ‘INTEND TO KILL’ DOESN’T BAR PAROLE FOR ATTEMPTED MURDER.....cccccccccccsesece 15 B. LAWS BURIED IN GRAHAM’S APPENDIX DON’T IMPLY ATTEMPTED MURDERIS HOMICIDE. ..........c.ccceesseee 17 Certification ............cccccccssscccccecscsseccccccccsssesnscsscecececcsssssscensesccescceccanens 19 Table of Authorities Cases Bonilla v. State (Lowa 2010) 791 N.W.2d 697...ecccecccsescecsccessssecceseessecuees 5 Cox v. State (2011) 2011 Ark. 96, Not Reported in S.W.3d [2011 WL 737307] .....ceccccccssscssccsscssesssssseevevsscsaceecessecerseeceeaeeass 6 Cunningham v. State (Fla.App. 2011) 54 S0.3d 1045 voceccccssececsscssscceecsesereees 4 Gonzalez v. Florida (Fla.App. 2010) 50 S0.3d 633 wo ccceeccccsssesscccssscssesscesseescecsseseeees 6 Graham v. Florida (2010) 560 U.S. __, 130 S.Ct. 2011 [176 L.Ed.2d 825]... passim Jackson v. Norris (2011) 2011 Ark. 49, --- S.W.3d ---[2011 WL 478600]............ 6 Lockyer v. Andrade (2003) 538 U.S. 63 ooo ceeeccscccsecccssecssssesscacccssececsesesessesesesersece 8 Loggins v. Thomas (11th Cir. Sept. 7, 2011) --- F.3d ---[2011 WL 3903402]....6, 18 Manuel v. State (Fla.App. 2010) 48 S0.3d 94 oocecsscscscsssscsecssssessessscseeseees 4 McCullum v. State (Fla.App. 2011) 60 S0.3d 502 wou. ceescsseccccessesccsscesecssessscsesseens 4 Meadoux v. State (Tex.Crim.App. 2010) 325 S.W.3d 189 oo icscscsssscesseccesseceeee 6 Paolilla v. Texas (Tex.App. 2011) 342 S.W.3d 783 ooo. .ccccccccesscssssscesesceessescesseces 5 li People v. Corcoran (2006) 143 CalApp.4th 272 00... eeesessesseeeseeenneeeeeeeseeesateneeens 9 People v. J.LA. (2011) 196 Cal.App.4th 393 (rev. granted, $19484)....ee 3 People v. Leon (2010) 181 CalApp.4th 45200.eeceeseeeeeeeecseeeseesseeseeeeeenees 12 People v. Mendez (2010) 188 CalApp.4th 47 ooo. ecccccceesceeeeeeseteeeeeseeeeeneeseesasenes 3 People v. Nunez (2011) ---Cal.App.4th--- (rev. granted, $194643)....0..... 3,7, 14 People v. Ramirez (2011) 193 Cal.App.4th 613 (rev. granted, $192558).. 13, 18, 20 State v. Andrews (Mo. 2010) 329 S.W.3d 369... ccccccsccsscessscesssessceesseeceseseseeees 6 State v. Golka (2011) 281 Neb. 360 [796 N.W.2d 198] 0...ecceeceesseeeseesees 5 Twyman v. State (Del. July 25, 2011) [2011 WL 3078822]...ecseeteeteeeeees 6 United States v. Mathurin (S.D.Fla. June 29, 2011) ---F.Supp.2d--- [2011 WL 2580775] .3 Williams v. Taylor (2000) 529 U.S. 362 oo. eccesssseeceseeeceeceeceereceseeessesseeaesersnssees 19 ili Statutes California Rules of Court, Rule 4.425 ...ccccccscscsssscccsccssssssessceeeee 10, 11 Haw. Rev. Stat. §706-656 ......ccccccccccsssssscecceccsssecsssseesscssesssecsesecsscceseeene 17 Other CalCrim No. 600.......ccccsccsscssssscscsssscecessessecsessssssestssesacsesscsssesseasecsesees 12 Connie De La Vega and Michelle Leighton, Sentencing Our Children to Die in Prison: Global Law & Practice, 42 U.S.F. L. REV. 983 (2008)......e.eee. 19 Paolo G. Annino,et al., Juvenile Life Without Parolefor Non-Homicide Offenses: Florida Compared to Nation, Public Interest Law Center, FSU (September 14, 2009) ..0....cccccccssecccccessscscecsssscsctssececeeseses 17 iv Argument I Any Prison Term that Exceeds a Juvenile Non-Homicide Offender’s Life Expectancy is Unconstitutional Since 2010, all federal and state courts have, without fail, rejected a prison term that exceeds the life expectancy of a juvenile offender whodid not kill. Only two cases under review from Division Four of the 2nd District Court of Appeal defy this trend.’ All other courts have reduced or vacated juvenile life terms that deny parole for non-homicide offenders under Graham v. Florida (2010) 560 US.130 S.Ct. 2011 [176 L.Ed.2d 825] (hereinafter “Graham”. This holds true regardless of the numberofvictims or the viciousness of the minor’s crimes and includes convictions for attempted murder. It represents an outright rejection of the Attorney General’s theses. The national movement proves that the taking of humanlife marks the demarcation between those juveniles who qualify for a reduced sentence under Graham and those whodo not. Theborderis not, as the Attorney General insists, dependent on the label “life without parole” (AnswerBriefon the Merits at pp. 15-16), the number of victims (/d. at 25, 31, 32-33), multiple convictions (/d. at 7, 19, 35), or whether the offender intended to kill (/d. at 13-14). The Attorney ' People v. Caballero $190647 [110 to life for attempted murder offenses]; People v. Ramirez S192558 [120 to life for attempted murder convictions]. General has not cited one post-Graham case adopting her novel arguments because none exists. Manipulating sentencing terms or employing creative adult consecutive sentencing schemes to defeat Graham's categorical rule, as the Attorney General suggests, is prohibited. Whether denominated “minimum,” “mandatory,” “enhanced”or “consecutive,” the maximum sentence for a minor who doesn’t kill cannot exceed his life expectancy or it runs afoul of the Eighth Amendment. “This Court now holds that for a juvenile offender who did not commit homicide the Eighth Amendment forbids the sentence of life without parole.” (Graham, supra 130 S.Ct. at p. 2030.) Petitioner therefore qualifies for relief because he did not kill. His sentence of 110 years to life for attempted murder is excessive and serves no valid purpose. Petitioner’s case also possesses several compelling additional mitigating factors that counsel againsta lifetime of incarceration. Consistent with the many courts that have uniformly applied Graham, the judgment of the 2nd District Court of Appeal should be reversed. A. No-Parole Prison Terms for Juveniles Convicted of Serious Non-Homicide Offenses—Including Attempted Murder—havebeen Rejected Nationwide Each of the following cases has rejected the arguments contained in the Attorney General’s AnswerBrief: In United States v. Mathurin (S.D.Fla. June 29, 2011, No. 09— 21075—Cr) 2011 WL 2580775, a juvenile faced a federal mandatory minimum of 307 years because of several convictions carrying consecutive 25-year terms for robbery, carjacking and firearms. The District Court converted his sentence to a concurrent term of 41 years to comply with Graham andthe Eighth Amendment. In People v. JIA. (2011) 196 Cal.App.4th 393, review granted September 14, 2011, S194841, a 14-year-old was convicted of multiple violent sex offenses on separate victims, robbery, and forcible witness dissuasion making him parole-eligible at age 70. The court of appeal reduced the sentence to allow parole eligibility at age 56 because the sentence was cruel and unusual under Graham and People v. Mendez (2010) 188 Cal:App.4th 47 (hereinafter “Mendez’). The court explained: “J.A.’s sentence makes him ineligible for parole until he is 70 years of age. Although J.A.’s sentence is not technically an LWOPsentence,it is a de facto LWOPsentence becauseheis not eligible for parole until about the time he is expected to die. Thetrial court's sentence effectively deprives J.A. of any meaningful opportunity to obtain release regardless of his rehabilitative efforts while incarcerated.” (People v. J.I.A., supra, slip opn.at p. 11.) In People v. Nunez (2011) ___—- Cal.App.4th __,, review granted July 20, 2011, S194643 (hereinafter “Nunez’’), the Attorney General unsuccessfully defended a minor’sstring of 5 consecutive life sentences for aggravated kidnapping because they didn’t theoretically constitute “life without parole.” (/d. at p. 8.) The court of appeal rejected the argument. Relying on Graham and Mendez, the court remanded the unconstitutional sentence because parole eligibility was an illusory 175 years distant.’ In Manuel v. State (Fla.App. 2010) 48 So.3d 94, 97, a 13-year- old’s two life without parole sentences for two counts of attempted first degree murder and other convictions was vacated following Graham [the Court established a bright-line rule excluding life- without-parole sentences for juveniles who commit nonhomicide offenses, regardless of how heinous the underlying crime”]; accord McCullum v. State (Fla.App. 2011) 60 So.3d 502, 503, review denied, SC11-869, 2011 WL 2906151 [17-year-old’s sentence oflife without possibility of parole for attempted second degree murder and robbery vacated following Graham and Manuelv. State, supra, 48 So.3d 94: “we reject the state's assertion that an attempted homicide should be treated as an actual homicide under Graham’; compare Cunningham v. State (Fla.App. 2011) 54 So.3d 1045 [Graham relief denied to Juvenile sentenced to four concurrent life terms because defendant enjoys presumptive parole release date in just 15 years]. * The label “life without parole” has been bandied about by the Attorney General to distinguish Graham. (Answer Brief 15-16.) However, Terrance Graham was formally sentenced to a parole- eligible life term for robbery, but Florida abolished parole. This converted Graham’s life sentence to defacto life without possibility of parole—the same as Petitioner’s functionally equivalent sentence of life without possibility of parole. (Please see Opening Brief on the Merits 12-13.) In Bonilla v. State (Iowa 2010) 791 N.W.2d 697, a 16-year-old received a mandatory life without parole sentence for kidnapping. Following Graham, the Supreme Court of Iowa vacated the mandatory term making the juvenile eligible for parole review immediately. (/d. at p. 702, n. 3.) B. Life Imprisonment for Juvenile Homicide Offenders Conforms to Graham In contrast to non-homicide offenses, courts have steadfastly refused to extend Graham to juveniles convicted of murder. See, e.g., State v. Golka (2011) 281 Neb. 360, 381 [796 N.W.2d 198, 215-16] {juvenile convicted of 2 counts of first degree murder denied relief: “Since Graham . . . courts have upheld sentences of life without - parole for juveniles who have committed homicides. Jackson v. Norris, 2011 Ark. 49, = S.W.3d___ (2011); State v. Andrews, 329 S.W.3d 369 (Mo. 2010). The majority opinion in Andrewsstates that ‘the Court recognized [in Graham] that a line existed “between homicide and other serious violent offenses against the individual.”’...’ 329 S.W.3d at 377. Andrews further states that ‘[b]y illustrating the differences between all other juvenile criminals and murderers, the Court implies that it remains perfectly legitimate for a juvenile to receive a sentence oflife without parole for committing murder.’ Jd. We agree with the reasoning of these cases.”]; Paolilla v. Texas (Tex.App. 2011) 342 S.W.3d 783 [juvenile convicted of capital murder deniedrelief]; Loggins v. Thomas (11th Cir. Sept. 7, 2011, No. 09-13267) __F.3d__- [2011 WL 3903402] [17-year-old’s sentence of life without parole for murder not cruel and unusual under Graham]; Jackson v. Norris (2011) 2011 Ark. 49, --- S.W.3d ----, [2011 WL 478600] [Graham inapplicable to juvenile sentenced to life imprisonment without parole for capital murder]; Cox v. State (2011) 2011 Ark. 96, Not Reported in S.W.3d [2011 WL 737307] [juvenile sentenced to life imprisonment without parole as an accomplice in capital murderdenied relief]; Meadoux v. State (Tex.Crim.App. 2010) 325 S.W.3d 189 [distinguishing Graham, life without parole for 16- year-old convicted of capital murder affirmed]; Gonzalez v. Florida (Fla.App. 2010) 50 So.3d 633 [16-year-old’s sentence of life in prison for first-degree premeditated murder affirmed over Graham challenge]; State v. Andrews (Mo. 2010) 329 S.W.3d 369, 376-77 [“Roper expressly and Graham implicitly recognize that life without parole is not cruel and unusual punishment for a minor who is convicted of a homicide’’}; Twymanv. State (Del. July 25, 2011, No. 747, 2010) 2011 WL 3078822 (Unpublished Disposition) [affirming sentence of 15-year-old who received two mandatory life sentences for homicide and nonhomicide offenses for murderin thefirst degree, murder in the second degree, attempted murder, conspiracy and firearms]. These decisions demonstrate that state and federal courts have applied Graham consistently, but the Caballero and Ramirez panel got it wrong. The touchstone for granting or denying a juvenile Eighth Amendmentrelief is homicide—not the numberofvictims, or whether a crime spree developed over several incidents, or whether the minor intended to kill) The Attorney General’s attempt to distinguish Graham on those bases should berejected. II Sentencing Semantics are not Dispositive: a Consecutive Sentence that Denies Petitioner Parole Violates the Eighth Amendment The Attorney General’s argument—that a consecutive sentence for multiple attempted murder convictions is constitutionally the same as life with no parole for murder—is wrong. The Attorney General’s attempt to make an end run around the U.S. Supreme Court should be rebuffed. A string of otherwise constitutional terms of years, stacked consecutively and extending beyond the lifetime of the offender, as the Attorney General posits, violates the Eighth Amendment because it implies the defendant has an “irretrievably depraved character” and is incapable of change. (Graham, supra 130 S.Ct. at p. 2026.) After Graham, judges no longer have discretion to impose consecutive terms exceeding the life expectancy of a juvenile offender who didn’t kill regardless ofthe constitutionality of each incrementalprison term. (See People v. Nunez, supra at p. 3: a sentence for a term of years exceeding the life expectancy of a juvenile, but without the “life without possibility of parole label,” does not pass constitutional muster based on a theoretical, but illusory parole date.) The Attorney General’s reliance on Lockyer v. Andrade (2003) 538 U.S. 63 for the proposition that juveniles may receive consecutive mandatory terms exceeding their lives is misplaced. (Answer Brief 20-23.) In 2003, the Supreme Court noted it had not provided sufficient guidance “in determining whether a particular sentence for a term of years can violate the Eighth Amendment[;] we have not established a clear or consistent path for courts to follow.” (Lockyer v. Andrade, supra at p. 72.) That is, until seven years later when Graham categorically prohibited a juvenile life term with no parole for non-homicide offenses. Graham is now “clearly established Federal law” and has been retroactively applied. This distinguishes all of the pre-Graham adult cases the Attorney General cites which employed gross proportionately to affirm a term of years sentence. Below we show that the Attorney General’s theories result in extreme unconstitutional sentences regardless of whether injuries weresustained or the numberofseparate violent incidents. A. Under Respondent’s Theory, Minors Who Have Not Fired GunsorInflicted Injury Could Suffer a Lifetime of Incarceration The Attorney General’s reasoning is flawed because it assumes only serial juvenile offenders who commit multiple shooting offenses receive prison terms exceeding life expectancy. (Answer Brief on Merits 24-25.) This premise is unfounded for juvenile offenders in California generally and Petitioner’s case in particular. For example, in People v. Corcoran (2006) 143 Cal.App.4th 272 (hereinafter “Corcoran”, a 17-year-old without a prior record received determinate terms totaling 41 years consecutive to two consecutive life terms for a single, botched kidnapping-robbery in which no weaponwasfired and no one wasinjured.’ Corcoran and Caballero demonstrate that the Attorney General’s premise is wrong. The Court of Appeal made this same mistake: “Under our sentencing rules, there are only two ways a juvenile defendant can receive [a term-of-years sentence that exceeds life expectancy]. One is to commit crimes against multiple victims during separate incidents and the other is to commit certain enumerated offenses, discharge a gun, andinflict great bodily injury upon at least two victims.” (People v. Caballero at pp. 19-20 [fn. omitted].) Petitioner’s case proves that supposition incorrect because he didn’t commit any of the imagined scenarios. Rodrigo Caballero didn’t fire at multiple victims during separate incidents and he didn’t cause at least two victims great bodily injury. Yet, he is denied parole until his 122nd birthday. This makes his sentence categorically disproportionate under Graham and should bereversed. * Recently, this Court denied Corcoran’s petition for review without prejudice to anyrelief to which Corcoran might be entitled following the decision in this case, People v. Caballero. (See In re Tyler Corcoran on Habeas Corpus, $193521 (August 10, 2011).) B. Petitioner Injured One Person During a Single Incident In one incident lasting about 10 seconds, Rodrigo Caballero shot at 3 boys wounding one. He received consecutive terms of 35 to life, 35 to life, and 40 to life without satisfying any of the sentencing criteria set forth in Cal. Rules of Court, R. 4.425.’ Petitioner’s crimes were not independent; did not involve separate acts; and were not committed at different times or places. Furthermore, at sentencing, the court made no findings, never discussed or applied the criteria of Rule 4.425, received no argument, and imposed the maximum sentence without considering Rodrigo’s mental disease, his poor education, lack of prior criminality, and the relatively short time (6 months) he belonged to a gang. (Reporter’s Transcript 1285-88.) Thus, the Attorney General’s assertion that Petitioner is thrice culpable because of three convictions is misleading. (Answer Brief 31.) Not only does Petitioner’s mental disease reduce his culpability, * Rule 4.425. Criteria affecting the decision to impose consecutive rather than concurrent sentencesinclude: (a) Criteria relating to crimes Facts relating to the crimes, including whetherornot: (1) The crimes and their objectives were predominantly independentofeach other; (2) The crimes involved separate acts of violence or threats of violence; or (3) The crimes were committed at different times or separate places, rather than being committed so closely in time andplaceas to indicate a single period of aberrant behavior. 10 but also the so-called “repeated” offenses were committed during a single course of conduct. (AnswerBrief 32.) C. Petitioner is not the Serial Offender That Respondentand the Court Imagined The Attorney General claims Petitioner is rightfully punished with three consecutive life terms because of three victims. This, the Attorney General argues, distinguishes Graham because appellant’s moral culpability is compromised.° “Repeated” offenses do not justify the imposition of consecutive terms when,as here, they were committed during a single course of conduct. Cal. Rules of Court, Rule 4.425 subdivision (a) discourages stacking life terms unless the offenses were committed on separate occasions.° > Answer Brief 31 [“appellant who intendsto kill, and tries to kill, three different persons, especially in a premeditated fashion, is one whose culpability is at least treble”]; Answer Brief 32-33 [“it was only by appellant’s repeated commission of these offenses on different victims that he subjected himself to a total penalty that amounted to a sentence with a minimum parole eligibility that should exceed his life”]; Answer Brief 35 [“It was not until he committed additional attempted murders that (the potential for parole) was effectively denied”’]. ° Multiple victims werea criterion for imposing consecutive sentences under former Cal. Rules of Court, Rule 425 subdivision (a) (4) untilit was repealed in 1991. The new rule, Rule 4.425, does not include it. However, where appropriate, multiple victims maystill be used as a il Also, Petitioner’s jury wasinstructed that a “kill zone” expands the perimeter of liability pursuant to CALCRIM No. 600. (Clerk’s Transcript 61.) In this manner, a single violent episode can result in numerous findings of liability. This concept artificially inflates criminalintent becauseit attributes an intention to harm many from an attempt to harm one. Yet, Petitioner’s moral culpability remained the same. In a single incident, Petitioner shot wildly at a group of individuals he never knew injuring one. There was one objective, but three individualsat risk in the line offire. Petitioner is not as blameworthy asthe imaginary defendant the Attorney General and the Court of Appeal conjured to deny relief— “an individual who shot and severely injured any numberof victims during separate attempts on their lives could not receive a term commensurate with his or her crimesif all the victims had the good fortune to survive their wounds, because the sentence would exceed the perpetrator’s life expectancy.” (Opn. at p. 20; AnswerBrief 5-6, 25.) Rodrigo injured one boy during a single episode. Moreover, this scenario is highly unlikely. It posits a serial attempted murderer to blur the distinction the U.S. Supreme Court drew between attempts and completed homicides. The number of individuals whofit that category is undoubtedly low. factor in imposing consecutive sentences. People v. Leon (2010) 181 Cal.App.4th 452, 467. 12 There is a line ‘between homicide and other serious violent offenses against the individual.’ Kennedy, 554 US., at, 128 S.Ct, at 2659-60. Serious nonhomicide crimes ‘may be devastating in their harm .. . but “in terms of moral depravity and of the injury to the person and to the public,” . . . they cannot be compared to murder in their “severity and irrevocability.”” Id, at __, 128 S. Ct., at 2660 (quoting Coker, 433 U.S., at 598, 97 S. Ct. 2861 (plurality opinion)). This is because ‘[l]ife is overfor the victim of the murderer,’ but for the victim of even a very serious nonhomicide crime, ‘life . . . is not over and normally is not beyond repair.’ Ibid. (plurality opinion). (Graham, supra 130 S.Ct. at p. 2027.) Petitioner’s victim was hospitalized one day. In reality, minors like Petitioner are receiving excessively long terms for multiple offenses committed duringa single, brief lapse in judgment. (Cf People v. Ramirez (2011) 193 Cal.App.4th 613, 631 review granted June 22, 2011, S192558 (dis. opn. of Manella, J.) [Appellant's crimes, admittedly brutal, were planned and committed when he was 16 years old and representthe actions of a few hours on a single day of his younglife.”]; and see Graham, supra 130 S.Ct. at p. 2028: a “juvenile’s ‘lack of maturity and underdeveloped sense of responsibility . . . often result in impetuous andill-considered actions 13 and decisions’” (quoting) Johnson v. Texas (1993) 509 U.S. 350, 367.) Yet, juveniles who commit far more egregious offenses than Petitioner have received sentencing relief. (See, e.g., People v. Nunez, supra where a 14-year-old received 175 to life for aggravated kidnapping and four attempted murder offenses committed during 36- hour crime spree involving the firing of an AK-47 at a carload of victims and police officers on separate occasions: “While the sum of his conduct is more serious because he committed multiple offenses, and he is accordingly more culpable than a defendant who commits a single offense, under Graham his culpability remains diminished as a juvenile. Accordingly, no penalogical justification supports a permanentdenial of parole consideration.” (/d. at p. 14).) In sum, Petitioner’s conduct, though serious, should not result in the wholesale denial of any opportunity to obtain future release. The record proves Rodrigo Caballero suffered from schizophrenia, had no prior felony convictions, displayed bizarretrial conduct, and suffered from memory lapses and a limited education. Noneofthese issues was considered before 110-years-to-life was imposed. The Supreme Court condemned this practice becauseit deprives young offenders of a chance to demonstrate eventual growth and maturity. Rodrigo Caballero regained competence in 12 short months with counseling, medication, and therapy administered during pretrial confinement. This reflects a genuine, proven capacity to change. Accordingly, his sentence should be vacated. On remand, thetrial 14 court should order the preparation of a detailed sentencing report and provide Petitioner a hearing to present mitigating evidence. Til Attempted Murderis not Homicide The Attorney General claims Graham’s use of the phrase “intend to kill” makes attempted murder a homicide. (AnswerBrief 13.) But an equally logical interpretation demonstrates that Rodrigo Caballero is entitled to relief. A. Graham’s Use of the Term “Intend to Kill” Doesn’t Bar Parole For Attempted Murder The Court has recognized that defendants who do not kill, intend to kill, or foresee that life will be taken are categorically less deserving of the most serious forms of punishment than are murderers. (Graham, supra 130 S.Ct. at p. 2027.) “Defendants who do notkill” refers to offenderslike Petitioner whoseacts do not cause death. Those “who do not intend to kill” may refer to juveniles who commit negligent homicide. Those “who do not foresee that life will be taken” may refer to minors who lack malice. In other words, juveniles who commit premeditated murder, or kill with actual or implied malice, or commit voluntary manslaughter, may be denied parole because they are “murderers.” 15 Minors who commit involuntary and attempted killings are not “murderers.” Under this interpretation, Rodrigo Caballero is entitled “to parole because he comes within the class of offenders who possess “diminished moral culpability” deserving less “serious form of punishment than [] murderers.” (Graham, supra 130 S.Ct. at p. 2027.) As the Attorney General concedes, “{a]n attempted murderer doesnotfall precisely on eitherside ofthis traditional line—he or she neither murders yet still intends to kill... . [S]ome language in the Supreme Court’s opinion might, in isolation, suggest that only a juvenile’s completed homicide would permit a life without parole sentence.” (AnswerBrief 13.) But the Court’s language is more than “suggestive”: This Court now holds that for a juvenile offender who did not commit homicide the Eighth Amendmentforbids the sentence of life without parole. This clear line is necessary to prevent the possibility that life without parole sentences will be imposed on juvenile nonhomicide offenders whoare not sufficiently culpable to merit that punishment. (Graham, supra 130S.Ct. at p. 2030.) [T]hose who were below [18] when the offense was committed may not be sentenced to life without parole for a nonhomicide crime. (Ibid.) 16 Courts have extracted a “bright-line rule” from Graham to deny killers relief and extend Eighth Amendmentprotection to attempts. (See cases collected at p. 4, ante.) This Court should do the same and vacate Petitioner’s sentence. B. Laws Buried in Graham’s Appendix Don’t Imply Attempted Murder is Homicide Respondent’s reliance on Hawaii law, the Annino Study, or Israel’s sentencing practice is not persuasive. (AnswerBrief 14-15.) In Hawaii, persons sentenced to life without possibility of parole for first degree murder and attempted first and second degree murder are automatically entitled to parole consideration after 20 years.’ Thus, reference to this law in the Court’s appendix hardly supports Respondent’s argument that Graham approves of denying parole to juveniles convicted of attempted murder. Furthermore, Hawaii authorities have confirmed the only individuals sentenced to life without parole were convicted of murderin thefirst degree—not attempted murder. (Paolo Annino,etal., Juvenile Life Without Parole (Sept. 14, 2009) Appendix II at p. 10 (hereinafter “Annino’’).) ” “As part of such sentencethe court shall order the director of public safety and the Hawaii paroling authority to prepare an application for the governor to commute the sentence to life imprisonment with parole at the end of twenty years of imprisonment; provided that persons whoare repeat offenders under section 706-606.5 shall serve at least the applicable mandatory minimum term of imprisonment.” (Haw.Rev.Stat. §706-656.) 17 The Annino Study omitted attempted homicide from the definition of “non-homicide” offenses. (Anninoat pp. 3-4.) This was to documentthe incidence of a particular sentencing practice. It did not reflect policy-making that the Court subsequently adopted, but only the methodology ofthe study’s authors. The Court relied on the research to support its statistical analysis because the Annino Study was the most recent and comprehensive study then existing. However, the Court did not embrace the study’s definition of what constitutes homicide. In fact, Graham adopted a broader bright-line tule that has been consistently applied by lower courts “becauselife is over for the victim of the murderer, but not normally beyond repair for victims of non-homicide offenders.” (Graham, supra 130 S.Ct. at p. 2027; andsee cases collected at pp. 2-6, ante.)° The Attorney General’s argument—that an obscure reference buried in Graham’s appendix means attempted murder is homicide— was also advanced in Ramirez and rejected. Justice Manella—the only appeals court jurist to have considered the argument—dismissed it. (Ramirez, supra at pp. 631-32 (dissent).) Finally, the Attorney General’s claim that Israel has sentenced any juveniles to life without parole—let alone those convicted of * The dearth ofavailable data mayalso explain the narrow focusofthe Annino Study. “[T]hestatistics we have found concerning the number of life without parole sentences imposed for juvenile crimes over the years are not broken down between homicide and nonhomicide crimes ...” (Loggins v. Thomas (11th Cir. Sept. 7, 2011, No. 09-13267) --- F.3d--- at n. 8 [2011 WL 3903402].) 18 attempted murder—is not accurate. (Answer Brief 14.) (See the detailed Israeli census contained in Connie De La Vega and Michelle Leighton, Sentencing Our Children to Die in Prison: Global Law & Practice, 42 U.S.F. L. Rev. 983, 1002-04 (2008).) This casts serious doubt on the Attorney General’s reasoning to resolve these cases. Graham’s categorical prohibition of denying parole to juveniles not convicted of homicide is now established Federal law. It would be error and contrary to clearly established Supreme Court precedent to deny Rodrigo Caballero relief because Graham’s bright-line rule separates minors who kill from all other juvenile offenders. (Williams v. Taylor (2000) 529 U.S. 362 [state court’s refusal to set aside death sentence for denial of constitutional right to effective assistance of counsel violated established Federal law].) The Attorney General’s plea to narrow Graham’s holding has been rejected by an unbroken line of cases nationwide. This Court shouldrefuse it as well. “The import of Graham's holding is both implicit and explicit: juveniles are works in progress, more malleable andless formed, more capable of change and development, andless morally responsible than adults; those convicted ofnonhomicide offenses are demonstrably less culpable than those convicted of taking a life; they may not be ‘written off at the time of sentencing as incapable of ever becoming sufficiently responsible to be released from custody; and becauselife in prison without the possibility of parole “gives no chance for fulfillment outside prison walls, no chance for reconciliation with 19 society, [and] no hope,’ it violates the Eighth Amendment. (Graham, supra, 560 U.S. atp.__ [130 S.Ct. at p. 2032].)” (Ramirez, supraat p. 631 (dis. opn. of Manella, J.).) For the foregoing reasons, the judgmentofthe Court ofAppeal should be reversed. September 28, 2011 Respectfully submitted, KOSNETT & DURCHFORT BLED.Bhp By DavidE-DureE, Durchiort | 20 Certification In accordance with Cal. Rules of Court, R. 8.504(d), I certify this brief contains 4,396 words according to the word-count function of the program usedto prepareit. September 28, 2011 KOSNETT & DURCHFORT A fEChff By David-E. Durchedit ' 21 PROOF OF SERVICE CALIFORNIA, COUNTY OF LOS ANGELES I am employed in the County of Los Angeles, State of California. I am over the age of 18 and not a party to the within action. My business address is 11355 West Olympic Boulevard, Suite 300, Los Angeles, California 90064. On the date set forth below, I caused the document described as PETITIONER’S REPLY BRIEF ON THE MERITSto beserved oninterested parties in this action as follows: State Attorney General Clerk Superior Court 300 South Spring Street 42011 4° Street West North Tower, Suite 1701 Lancaster, CA 93534 Los Angeles, CA 90012 Clerk of the Court of Appeal Office of the District Attorney 300 South Spring Street 42011 4"Street West 2" Floor Lancaster, CA 93534 North Tower Los Angeles, CA 90013-1213 Rodrigo Caballero Pacific Juvenile Defender Center High Desert State Prison 200 Pine Street CDC G68431D214 UP Suite 300 P.O. Box 3030 San Francisco, CA 94104 Susanville, CA 96127 {XX} BY MAIL: I caused such envelope to be deposited in the mail at Los Angeles California, with first class postage thereon fully prepaid. I am readily familiar with the practice, it is deposited with the United States Postal Service on that same day, at Los Angeles, California, in the ordinary course of business. I am aware that on motion of the party served, service is presumedinvalid if postage cancellation date or postage meter date is more than one (1) day after the date of deposit for mailingin affidavit. {XX} STATE: I declare under penalty of perjury under the laws of the State of California that the aboveis true andcorrect. Executed this 7 day of September 2011, at Los Angeles, California. “TonicsHhomegr Monica L. Thompson
